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2020 DIGILAW 408 (ALL)

UCO Bank v. District Magistrate, Faizabad

2020-02-06

NARENDRA KUMAR JOHARI, VED PRAKASH VAISH

body2020
ORDER : C.M. Application No. 148155 of 2019 (Condonation of delay) and C.M. Application No. 148157 of 2019 (Review Application) 1. Heard Sri G.S.L. Verma, learned counsel for the Applicant/Petitioner and Sri Sumit Tahilramani, Advocate holding brief of Sri Sm Singh Royekwar, learned counsel for the respondent. 2. There are two applications, bearing C.M. Application No. 148157 of 2019 for review of Order dated 27.03.2019 and C.M. Application No. 148155 of 2019 for condonation of delay in filing the review application. 3. The first application is for condonation of delay in filing the review application. 4. Learned counsel for the respondent submits that he does not wish to file reply to the application for condonation of delay. 5. Arguments on the application heard. 6. Learned counsel for the respondent submits that he has no objection, if the application for condonation of delay is allowed and the delay in filing the review application is condoned. 7. In view of the submissions made by learned counsel for both the parties, the application for condonation of delay is allowed and the delay in filing the review application is condoned. 8. Accordingly, the C.M. Application No. 148155 of 2019 stands disposed of. 9. The second application is for review of order dated 27.03.2019 passed by this Court in W.P. No. 3052 (M.B.) of 2019. 10. Learned counsel for the respondent submits that he does not wish to file reply to the review application. 11. Arguments on the application heard. 12. Learned counsel for the applicant submits that the applicant had filed counter affidavit and the same was not considered by the Court at the time of passing the order dated 27.03.2019, the said order was passed without hearing the applicant and without considering the counter affidavit. 13. The brief facts of the present case are that respondent No. 4, namely, Sri Tribhuwan Prajapati took a loan of Rs. 5,50,000/- (Rupees Five Lakhs Fifty Thousand only) from the respondent/petitioner UCO Bank on 24.02.2007 and created an equitable mortgaged in respect of Plot/House No. 222, ad-measuring 1361 sq. ft. 13. The brief facts of the present case are that respondent No. 4, namely, Sri Tribhuwan Prajapati took a loan of Rs. 5,50,000/- (Rupees Five Lakhs Fifty Thousand only) from the respondent/petitioner UCO Bank on 24.02.2007 and created an equitable mortgaged in respect of Plot/House No. 222, ad-measuring 1361 sq. ft. situated in Village Bhikhapur (Bahar Nagar Palika), Pargana Haweli Awadh, Tehsil Sadar, District Faizabad, the borrower fail to make payment to the outstanding amount and the account was declared as 'Non-Performing Asset' on 26.05.2011; the petitioner served a demand notice dated 28.05.2011 under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act, 2002) to respondent No. 4 and he was asked to repay the outstanding amount of Rs. 7,24,505/- (Rupees Seven Lakhs Twenty Four Thousand Five Hundred and Five only); the respondent No. 4/borrower fail to repay the said amount and the bank after taking recourse to Section 13 (4) of the SARFAESI Act, 2002 took symbolic possession of the secured asset on 15.10.2011. The respondent No. 4, Sri Tribhuwan Prajapati sold the said property to Sri Amar Nath Pandey, respondent No. 5/applicant herein vide sale deed dated 28.06.2010. Thereafter, the UCO-bank filed a petition under Section 14 of the SARFAESI Act, 2002 before the District Magistrate, Ayodhya/Faizabad, bearing Case No. 80 (12-13) titled as "UCO Bank vs. Tribhuvan Prajapati". The District Magistrate directed to Sub-Divisional Magistrate, vide order dated 18.12.2014 District Magistrate/Collector, Faizabad passed an order to get the possession of mortgaged property/secured asset delivered to the petitioner's Bank. However, the possession was not delivered to the petitioner UCO Bank. The petitioner-UCO Bank filed a writ petition, bearing W.P. No. 3052 (M.B.) of 2019 seeking directions to the respondents No. 1 to 3 to take over the physical possession of the secured asset/mortgaged property and hand over the same the petitioner Bank, in compliance of order dated 18.12.2014. 14. In the mean time, the UCO Bank sold the property the in question to Sri Prabhakar Singh (respondent No. 6 in the writ petition). 15. It is also pertinent to mention here that Sri Prabhakar Singh also filed a writ petition, bearing W.P. No. 36906 (MB) of 2018 titled as 'Prabhakar Singh vs. State of U.P. which was decided on 27.03.2019. 16. 15. It is also pertinent to mention here that Sri Prabhakar Singh also filed a writ petition, bearing W.P. No. 36906 (MB) of 2018 titled as 'Prabhakar Singh vs. State of U.P. which was decided on 27.03.2019. 16. On 27.03.2019, the petitioner bank submitted that in compliance of order dated 18.12.2014 passed by the District Magistrate, Ayodhya/Faizabad under Section 14 of the SARFAESI Act, 2002, the possession of the property in question was handed over to the petitioner bank and no further action is required and therefore, the petition was disposed of on 27.03.2019. 17. Learned counsel for the applicant submits that vide Order dated 27.03.2019 was passed without hearing the applicant and without considering the counter affidavit 18. On the other hand, learned counsel for the respondent bank submits that counter affidavit was not filed by the applicant. Learned counsel for the respondent submits that the petitioner had obtained possession in compliance of Order dated 18.12.2014 passed by the District Magistrate and the possession was handed over to the auction purchaser. 19. We have carefully considered the submissions made by learned counsel for both the parties and gone through the material available on record. 20. In 'Parsion Devi and Ors. v. Sumitri Devi and Ors., (1997) 8 SCC 715 , the Hon'ble Supreme Court held: "9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise"." 21. In another case, 'Sasi (Dead) Through Legal Representatives v. Aravindakshan Nair and Ors., : (2017) 4 SCC 692 , the Hon'ble Supreme Court after considering the judgment in Parsion Devi's case (supra) observed that review is not an appeal in disguise where erroneous decision reheard and corrected but lies for patent error. In another case, 'Sasi (Dead) Through Legal Representatives v. Aravindakshan Nair and Ors., : (2017) 4 SCC 692 , the Hon'ble Supreme Court after considering the judgment in Parsion Devi's case (supra) observed that review is not an appeal in disguise where erroneous decision reheard and corrected but lies for patent error. The Hon'ble Supreme Court in para 7 of the judgment observed as under: "7. In Thungabhadra Industries Ltd. v. State of A.P., the Court while dealing with the scope of review had opined: (AIR p. 1377, para 11) 11. What, however, we are not concerned with it whether the statement in the order of September, 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record". The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error." 22. In 'Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi', (1980) 2 SCC 167 , the Hon'ble Apex Court observed that: "8. ....it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'. " 23. In another case, 'Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale', A.I.R. 1960 SC 137, the Hon'ble Supreme Court considered the scope of review and it was observed: "An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ." 24. In the instant case, the petitioner UCO Bank had filed the writ petition seeking directions to the District Magistrate to comply with order dated 18.05.2014 and to get the possession handed over to the petitioner bank, the petitioner bank took possession of the property in question on 24.03.2019 and the same was handed over to the auction purchaser. 25. In our considered view, there is no sufficient ground for review of order dated 27.03.2019. 26. Accordingly, the application, C.M. Application No. 148157 of 2019 for review is dismissed.